Unfair dismissal; is it worth pursuing?

 

Unfair dismissal cases proceed in two stages.

The first stage is a conference, often called conciliation, conducted by the Fair Work Commission (and  State Commissions in some States) about a month after the claim is lodged with the Commission, which must be within 21 days of the termination of employment, unless an extension of time is obtained which can only occur in “exceptional circumstances” and is very rarely permitted.

Cases are very commonly settled between a former employee and the employer at this conference stage. The Commission does an excellent job in securing settlements. With good faith both employers and employees are generally keen to avoid incurring further expense and animosity. In my experience there is no “standard” settlement and agreements commonly include payments of compensation, the retraction of the dismissal and in lieu treatment of the termination of employment as a resignation, references, statements of service and mutual agreements of confidentiality and non-disparagement.

Of course the reaching of agreed resolutions of claims by settlements at the Commission’s conferences, and their terms, depend upon many factors including the relative and perceived strengths of the parties’ cases, the quality of the representation of the parties, the state of the relationship between the parties at that point, and the level of anxiety about the stress and risks of the next stage.

The second stage of an unfair dismissal case is preparing for a hearing and the conduct of the hearing  (called “the trial” by lawyers) with witnesses giving oral evidence, the preparation of countless lengthy documents and in due course the handing down of a decision by the Commission. This stage is very stressful, risky, costly and demanding, and warrants the most enormous of respect.

Employers in particular place great significance upon the costs of defending a claim and the impact of the distraction for current staff.

The first stage is a walk in the park when compared with the second stage.